On August 13, 2018, the United States District Court Central District of California, in Marcus Gray, et al. v. Katy Perry, et al., denied defendants’ motion for summary judgment, which sought to dismiss plaintiffs’ action alleging that the song “Dark Horse” infringes upon plaintiffs’ copyright in the song “Joyful Noise.” On the question of access to the copyrighted work, the Court found that “[d]rawing all reasonable inferences in the light most favorable to plaintiffs . . . there is a reasonable possibility that defendants had access to ‘Joyful Noise’ through its alleged widespread dissemination.”1 The Court’s finding of “access” based on “widespread dissemination” is particularly notable given the undisputed lack of any evidence of commercial exploitation of the allegedly infringed song, which fell within a niche music market.
The case was brought by plaintiffs Marcus Gray (“Gray”), Chike Ojukwu (“Ojukwu”), and Emanuel Lambert (“Lambert”), and Third-party Lecrae Moore (“Moore”), who are Christian rap/hip-hop artists. In 2007, Ojukwu composed and recorded the beat that would become the musical bed for the composition “Joyful Noise,” and Gray, Lambert, and Moore wrote and recorded the lyrics and hook for “Joyful Noise” over Ojukwu’s beat. Although a recording of the composition “Joyful Noise” appears on an album published by Gray, which debuted at #5 on the Billboard Gospel Chart and #1 on the Christian Music Trade Association R&B/Hip-Hop Chart, and was a nominee for Rap/Hip-Hop Gospel Album of the Year at the Stellar Award Show, there was no evidence submitted that plaintiffs ever sold or otherwise commercially released “Joyful Noise” or Gray’s album upon which it appears. As noted by the Court, the record does show that at least five videos containing “Joyful Noise” were uploaded to YouTube, which had a collective total of 1,365,041 views, and the “Joyful Noise” video was also posted on the Myspace pages of Moore and Gray, and had been played 1,531,856 times, and 933,868 times on Moore’s and Gray’s Myspace pages, respectively.
The writers of the musical composition “Dark Horse” are defendants Katheryn Elizabeth Hudson (P.K.A. Katy Perry, hereinafter “Perry”), Henry Russell Walter (P.K.A. Cirkut, hereinafter “Walter”), Lukasz Gottwald (P.K.A. Dr. Luke, hereinafter “Gottwald”), Karl Martin Sandberg (“Sandberg”), Sarah Theresa Hudson (“Hudson”), and Jordan Houston (“Houston”). In March 2013, Walter and Gottwald created an instrumental track, which became the musical bed for “Dark Horse.” Perry, Hudson, and Sandberg, in collaboration with Gottwald and Walter, subsequently created the sung vocal melody and lyrics for “Dark Horse,” while Houston wrote and recorded the rap vocal portion over the instrumental track. A recording of “Dark Horse” was released commercially in September and October 2013, both as a single and as a track on Perry’s album, Prism.
It was undisputed that the “Dark Horse” writers never met, received music from, attended concerts by, or watched television interviews of Gray, Lambert, Ojukwu, or Lecrae. The “Dark Horse” writers also claim that prior to writing “Dark Horse,” they had never heard of any of the plaintiffs nor had they listened to any of plaintiffs’ music, including “Joyful Noise,” while the plaintiffs dispute defendants’ claim that they had not heard “Joyful Noise” prior to writing “Dark Horse.”
In its analysis, the Court noted that, “[w]here, as here, there is no direct evidence of copying, ‘proof of infringement involves fact-based showings that the defendant had ‘access’ to the plaintiff’s work and that the two works are ‘substantially similar.’” See Three Boys Music Corp. v. Bolton, 212 F. 3d 477, 481 (9th Cir. 2000). Further, the Court noted that “[a]ccess may not be inferred through mere speculation or conjecture” as “[t]here must be a reasonable possibility of viewing the plaintiff’s work–not a bare possibility,” which can be proven by, among other things, “showing that the plaintiffs’ work has been widely disseminated.” See Three Boys, supra, 212 F.3d at 482 (quoting 4 Nimmer on Copyright, § 1302[A]).
However, in response to defendants’ argument that to prove “‘widespread dissemination’ . . . the plaintiffs’ work must be so popular that it can be reasonably assumed that defendants could not have avoided hearing it,” the Court disagreed, and stated that “plaintiffs’ burden at this juncture is not so high.” The Court further stated that “[a]ll plaintiffs must do here is set out specific facts showing a genuine issue for trial as to whether there is a reasonable possibility that defendants had the chance to view the protected work.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1143 (9th Cir. 2009).
Defendants heavily relied upon Loomis v. Cornish, 2013 U.S. Dist. LEXIS 162607, at *41 (C.D. Cal. Nov. 13, 2013), to assert that “in order for a work to be widely disseminated, it must achieve a high degree of commercial success or be readily available in the relevant market.” However, while the Court acknowledged that the Ninth Circuit in Loomis stated that “[i]n most cases, the evidence of widespread dissemination centers on the degree of a work’s commercial success and on its distribution through radio, television, and other relevant mediums,” the Court decided to focus on the Loomis court’s noting that “[t]he evidence required to show widespread dissemination will vary from case to case.” See Loomis, supra, 836 F.3d at 997.
In its analysis, the Court stated that if a showing of commercial exploitation is necessary to prove access, “such reasoning would make it permissible to infringe on a copyrighted work simply because it was never for sale.” Accordingly, the Court rejected defendants’ argument that “Joyful Noise” did not achieve widespread dissemination because of its lack of commercial success, holding that plaintiffs “have demonstrated a triable issue of fact as to access because ‘Joyful Noise’ achieved critical success, including a Grammy nomination, and was readily available and viewed millions of times on YouTube and Myspace.”
CONCLUSION – While the Court recognized that the record showed that “Joyful Noise” was not commercially exploited, it was persuaded by the combination of the millions of views and plays of “Joyful Noise” on YouTube and Myspace, and the critical success and popularity of the song in the Christian hip-hop/rap industry, that “a reasonable jury could conclude that there is more than a ‘bare possibility’ that defendants–who are experienced professional songwriters–had the opportunity to hear ‘Joyful Noise’.” Accordingly, attorneys representing defendant songwriters or musicians from copyright infringement claims should note that commercial exploitation and popularity outside of a niche market, may not be necessary to show “wide dissemination” for purposes of proving “access,” and that millions of Internet views and critical success may be sufficient for summary judgment purposes.
1 Additionally, the Court found that plaintiffs’ expert testimony was “sufficient to raise a genuine issue of material fact as to ‘substantial similarity.’”
-By Pierre B. Pine